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June 26, 2008

U.S. Justices Rule Out Death for Child Rape

by Sam Savage

By David Stout

The Supreme Court ruled 5 to 4 on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society, and that, short of first- degree murder, no crime is more deserving of the death penalty.

Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment's ban on cruel and unusual punishment, which draws its meaning from "the evolving standards of decency that mark the progress of a maturing society."

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint," Kennedy wrote.

The relatively small number of states that allow the death penalty for the rape of a child demonstrates a "national consensus" against it, Kennedy wrote. Moreover, he wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically pass between a crime and the execution of the defendant.

"Society's desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice," Kennedy wrote.

The dissenters were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr., generally regarded as the conservative wing of the tribunal.

Alito wrote a dissent lamenting that the majority had ruled out executing someone for raping a child "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."

The dissenters rejected the majority's reasoning that the small number of states allowing the execution of child rapists showed a consensus against the custom. Alito noted that some of those state statutes had been enacted even while the constitutionality of capital punishment for crimes other than murder was in doubt - thus reflecting a strong feeling in those states that the ultimate penalty was justified for such terrible harm to a child, in the dissenters' reasoning.

Not since 1964 has anyone been executed in the United States for a crime other than murder, and of about 3,300 inmates now on death row, only two are facing execution for an offense that did not involve a killing. Both of those inmates are in Louisiana. One is the man involved in the case the court decided: Patrick Kennedy, who was sentenced to death for the rape of his 8-year-old stepdaughter. The other is Richard Davis, who was condemned for assaulting a 5- year-old girl.

The case decided Wednesday, Kennedy v. Louisiana, No. 07-343, does not overturn the defendant's conviction. Rather, it returns the case to the Louisiana courts for resentencing.

Kennedy v. Louisiana was the latest in a series of cases in which the justices have weighed particular applications of capital punishment. In 2002, the court barred the execution of mentally retarded defendants, and in 2005 it banned the execution of people for crimes they committed before they were 18.